IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150601

Docket: 46842

Registry:
Kamloops

Between:

Candace
June Dickenson

Plaintiff

And

Natalie
Anne Passero

Defendant

Before:
The Honourable Mr. Justice Meiklem

Reasons for Judgment

Introduction to the Issues

[1]           
This is an assessment of damages for injuries sustained by Ms. Dickenson
in a motor vehicle accident in Kamloops on May 27, 2010. She was stopped at an
intersection, waiting to turn left from Columbia Street onto Second Avenue,
when she saw the defendant’s vehicle approaching quickly from behind. She
braced herself with her arms against the steering wheel, and her legs against
the floor and brake pedal. The defendant failed to stop her vehicle in time and
the resulting collision caused approximately $10,000 damage to the plaintiff’s
Hyundai Tiburon, and caused soft tissue injuries to her neck, shoulders and
back, and a mild psychological injury. Liability is admitted.

[2]           
Following the accident, Ms. Dickenson was transported by ambulance to
the nearby hospital where she complained of pain in her neck and back. X-rays
to her neck and back were negative and she was given Tylenol 3’s and
discharged. She went to work the following day, but after 25 minutes telephoned
her mother to pick her up due to the pain in her upper and lower back and her
hips and thighs. This worsened over the next two days and she went to her
family doctor, Dr. Barnard, who prescribed Naproxen. She attended Dr. Barnard
again on June 8 and reported that she was 50% improved. Her lower back pain and
neck pain had subsided, but sitting caused mid-back pain.

[3]           
She attended Dr. Bernard again in mid-June to get clearance to return to
work. She was then taking Naproxen, Ibuprofen and Tylenol. She went back to
work four hours per day from June 16, 2010 until June 25, 2010. On June 28, she
worked 5.5 hours, then 6.5 hours on June 29 and June 30. She returned to work
full time on Monday, July 5, 2010 following the Canada Day holiday weekend.

[4]           
At the time of the accident, the plaintiff was 22 years old. She had
graduated from Thompson Rivers University with a Bachelor of Business
Administration degree (Accounting Major) in 2009. She worked as a summer intern
at KPMG in the summer of 2008 and, starting in May 2009, was employed as a
staff accountant at KPMG and enrolled in the CASB (Chartered Accountant School
of Business) to obtain a chartered accountant (“CA”) designation. She continued
to work for KPMG until March 14, 2012, when she resigned to take up a term
position with Tolko Industries Ltd. in Vernon B.C. She obtained the CA
designation in June 2012, after successfully passing the requisite UFE exams in
the fall of 2011 on her first attempt.

[5]           
The main disputes in this assessment are the proper measure of
non-pecuniary damages, and whether the plaintiff suffered a major loss of
future earning capacity in the range of $450,000 to $1,350,000, as she alleges,
or no measurable loss of earning capacity, as the defendant maintains. Thankfully,
the parties advanced positions on the other heads of damages that are not as
disparate.

[6]           
The defendant questions the plaintiff’s credibility and the reliability
and completeness of her subjective reports which are critical to the
assessment.

The Medical Evidence

[7]           
There is no medical-legal report from Dr. Barnard in evidence, although
her clinical records were reviewed by Dr. Duncan Laidlow, a physiatrist, who
provided two reports, dated June 6, 2012 and September 15, 2014, and also
provided deposition evidence that included cross-examination. The evidence also
included a report from Dr. Todd Tomita, psychiatrist, and Dr. Murray Kievit,
chiropractor.

[8]           
The medical evidence establishes that the accident initially caused a
musculoligamentous strain of the upper thoracic spine, and muscular strain to
the areas of the neck and the lower back. The neck symptoms, which had been
accompanied by headaches, resolved within about two weeks of the accident. The
lower back strain, which had initially been accompanied by radiating pains down
her legs, resolved within a few months, although the evidence does not fix the
time of resolution with any certainty. As time passed, Ms. Dickenson developed
other symptoms potentially attributable to the accident.

[9]           
By the time of Dr. Laidlow’s May 28, 2012 examination, Ms. Dickenson’s
chief complaint was mid-back pain aggravated by sitting, but she also mentioned
intermittent tightness in her hips and the sense of the need to “crack”, and
intermittent right side facial pain, hypersensitivity and tingling.

[10]       
When examined again by Dr. Laidlow on September 15, 2014, Ms. Dickenson
added a complaint of occasional numbness in her right arm. Dr. Laidlow’s
September 15, 2014 report says the following concerning the diagnosis and
causation of Ms. Dickenson’s various symptoms:

1. Mid back pain

To my knowledge, Candace did not have a history of mid back
pain prior to being involved in the motor vehicle accident of May 27, 2010.

Candace was documented as having pain in the neck and mid
back shortly after the accident by the staff of the Royal Inland Hospital
Emergency Room.

She has had x-rays performed of the cervical spine and chest,
which were satisfactory.

She has continued to have a variable level of discomfort in
this region over the years that have passed since the accident.

Her examination findings show restriction in forward flexion
of the neck and tightness in the posterior shoulder girdle musculature, but I
cannot find any abnormality in the shoulders or mid back itself. There was no
evidence of any neurologic abnormality.

I feel that Candace did suffer a musculoligamentous strain to
the upper thoracic spine as a result of being involved in the motor vehicle
accident on May 27, 2010. This resulted in additional myofascial tightness and
a tendency toward mechanical pain as a result. She may have suffered a muscular
strain to the neck and low back area, as well but these have resolved. I
attribute the symptoms to the motor vehicle accident of May 27, 2010

2. Intermittent numbness of the right arm

Candace informed me that she is aware of intermittent
numbness in the right arm that seems to come on when her mid back pain is more
severe or if she is having to do more with her arms in the way of lifting, and
prolonged sitting or looking down for extended periods. The numbness seems to
involve the fingertips or the upper arm laterally. It does not involve the left
side and there is no numbness elsewhere.

Her physical examination reveals no evidence of abnormality
in her power and sensation. The reflexes are normal. There was muscular tightness
in the upper shoulder region and physical examination measures which tighten
the thoracic outlet area further did seem to produce some numbness in the upper
arm, but not the hand.

I feel that the altered sensation in the right arm reflects
myofascial tightness in the upper shoulder musculature, which in turn is
secondary to the musculoligamentous strain. There is no evidence of
radiculopathy and no evidence of any other neurologic abnormality. I do
attribute the symptoms to the motor vehicle accident of May 27, 2010

3. Tightness of the hips

Candace indicated to me that she has intermittent tightness
in the hips that can sometimes be more severe and make her feel as though her
hips will lock up. These symptoms are very intermittent and there is no radiation
of pain down the legs or any associated numbness.

On physical examination, she does show some muscular
inflexibility in the gluteal and hamstring muscles, but there is no abnormality
noted in the low back or hips to examination and her neurologic exam was
normal.

I would suspect that she is
getting myofascial pain from the hip girdle that reflects tightness in the
musculature. There is no evidence of any joint abnormality. I do attribute the
symptoms to the accident as I have no other explanation for them.

[11]       
In respect of the complaint of intermittent facial pain (described as
episodic pain felt around the right eye which can last up to a day), Dr.
Laidlow suspected the symptoms were tension related, but found it difficult to
relate them to the accident because of the length of time between the onset of
the symptoms and the time of the accident. Ms. Dickenson had reported to him in
May 2012 that she started to experience the facial pain symptoms somewhere
around January 2011.

[12]       
I am at a loss to understand Dr. Laidlow’s attribution in his September
2014 report of the hip symptoms, but not the facial pain, to the accident. The
September 2014 report referred to a January 29, 2013 report from another specialist
in physical medicine and rehabilitation to whom the plaintiff reported that she
had developed a right hip pain over the last couple of years which started in
December 2010, around the time that she was attending a kinesiologist. The hip
symptoms and the facial symptoms, therefore, arose very close to the same time.

[13]       
The distinguishing factor for Dr. Laidlow may have been that while he
had an alternative suspect explanation (tension) for the facial symptoms, he
had none for the hip symptoms. He was not asked about that potential
distinction, nor was he asked if there could have been a connection between the
hip symptoms and the contemporaneous kinesiology program analogous to the
connection implied at page 4 of his September 2014 report, concerning Ms.
Dickenson’s diagnosed chest wall strain after having pain in the right ribs
which started shortly after a chiropractic treatment.

[14]       
In any event, Dr. Laidlow agreed during his deposition cross-examination
on January 29, 2015 that, given that Ms. Dickenson’s low back pain had resolved
within a matter of the first few months, her hip pain arising after that would
be unlikely to be related to the accident.

[15]       
On that evidence, I am unable to find that the hip symptoms were
probably caused by the accident.

[16]       
Dr. Barnard recommended physiotherapy shortly after the accident, and
she attended 29 sessions between June 11, 2010 and December 29, 2010. She had
one treatment in February 2011 and another in February 2012. The plaintiff also
attended an Insurance Corporation of British Columbia (“ICBC”) funded
kinesiology program from December 2010 to December 2011. This involved a
stretching and exercise program focused on her back hips and legs. She says
that she continues to do the exercises learned in the program.

[17]       
In further efforts to gain relief, she has had 19 sessions of massage
therapy since September 2010 and 36 chiropractic treatments since August 2012.

[18]       
The following portions of Dr. Laidlow’s September 2014 report deal with
his suggestions for treatment of Ms. Dickenson, her accident related disabilities,
and her prognosis:

Suggestions for Treatment

On my last review of Candace in 2012, I felt it was important
for her to make modifications in her treatment program. I felt that there had
to be a greater emphasis on stretching and the stretches had to be held for
longer periods of time. She does do more now in the way of stretching than she
did at that time, but she continues to be tight in the neck extensors and as a
result is limited in her ability to flex the neck. She is tight in the
posterior shoulder girdle, as well as in the gluteal and hamstring musculature.
Through the summertime, she has primarily done walking and jogging, but does do
some home exercises which incorporate some stretches. While I do not feel that
there is anything wrong with the cardio exercises and even the light
strengthening that she does, I feel that she needs to emphasize the stretching
as being the key point of the program and in particular, needs to emphasize doing
stretches to the posterior shoulder girdle and the neck musculature, in
addition to the gluteal and hamstring muscles. She needs to concentrate on
trying to do those exercises on a daily basis and needs to check her progress
every few weeks to be certain that she is doing the exercises aggressively
enough as to gain range of motion without being so aggressive as to cause
herself spasm the following day.

Candace does feel that she gets some benefit from ongoing
chiropractic treatments, but I am less in favour of ongoing passive treatments
at this point in time after the accident. The best intentions of the
chiropractor would never result in anything more than very transient relief and
I would rather see her put time into a stretching program, as I think it will
be more productive and result in more of a long-term gain. I do not feel that
there is any role for further physiotherapy or massage. I do feel it is
appropriate that she takes occasional Ibuprofen.

I feel it that it is appropriate to have her office situation
reviewed again by an occupational therapist, particularly now that she has a
full-time position. She might well benefit from a sit/stand desk, as this would
allow her to adjust her position frequently and take some of the strain off her
upper back.

Disability Related to her
Accident Injuries

Candace has indicated to me that she has continued to work as
an accountant since [the] time of my last review. She has switched from doing a
maternity leave job in Vernon to a job in Kamloops. The Kamloops job involved
more hours, which she felt gave her less flexibility to attend various
appointments, such as chiropractic treatments. She preferred to work for Tolko,
in Vernon and when a job offer was made to her from Tolko, she took it and
works there now on a full-time basis. She does find that she manages the work,
although does find that the prolonged sitting can sometimes give her more
symptoms. She does feel that she should be able to carry on this work and I
also feel that is the case. I think she would have more difficulty if she is
exposed to more stress and workload, as she has found that to be difficult in
the past and it would tend to tighten up her musculature further. I do not
think that working longer hours would necessarily cause her more harm, but it
would be expected that working more than 40 hours per week would cause her more
discomfort and challenge her ability to cope with her discomfort to a much
greater extent. I think she will be best suited to work that allows for some
flexibility in moving about and changing position and one which allows for the
option of standing up, as well as sitting while doing the job.

Candace has found it more difficult to do the heavier tasks
around her home. As I look at her current situation, I personally feel that she
is capable of doing these tasks in her home, albeit less quickly than before. I
do feel that she would be capable [of] doing all the activities, although she
might have to do some of them on a more piecemeal basis than before. I would
expect that her ability to tolerate tasks would improve if she can improve her
flexibility further.

Prognosis

I do feel that Candace can make further gains if she ensures
that her exercise program results in gains in range of motion in the areas that
she remains tight. I would expect that as she accomplishes gains in
flexibility, the bad days that she experiences will become less frequent than
they are now and the intensity of the discomfort that she feels at those times
will be less severe.

The fact that she has had symptoms this long makes it highly
likely that she will continue to have pain in the mid back in the time to come.
I would expect that the numbness would disappear, as will the facial pain and
the hip complaints.

There is no evidence that she
suffered any permanent structural change to the spine and as such, I would feel
that she will not be any more prone to further problems down the road such as
arthritis or disc problems as a result of the accident. I would feel that her
ability to work and do things around her home should improve rather than worsen
over time.

[19]       
Ms. Dickenson was assessed by Dr. Tomita on July 29, 2014. The following
are excerpts from the opinion section of Dr. Tomita’s August 6, 2014 report:

[24]      Ms.
Dickenson appears to possess obsessional personality traits but these are
normative and not related to a personality disorder or other pre-existing
psychiatric condition.

[25]      Ms.
Dickenson’s preexisting obsessional personality traits likely contributed to
making her more prone to experiencing a psychiatric reaction following the
index accident. This manifested in several ways. First, she had a strong work
ethic and returned to work quickly. It appears that she assumed that willpower
could help her overcome any persisting injuries at the time she returned to
work; however, Ms. Dickenson experienced difficulty in the workplace when she
recognized that chronic back pain and concentration difficulty reduced her
efficiency and she was no longer as productive and was not meeting her
expectations for daily chargeable work hours as compared to before the index
accident. It appears that her obsessional personality traits made her
vulnerable to anxiety related to her inability to adapt and accept that she
could no longer work at the same level of productivity after the index
accident. She appears to have made a wise choice in shifting jobs as the
accumulating stress in the KPMG position could have led to a more severe
psychiatric reaction such as anxiety disorder or mood disorder.

[26]      Ms.
Dickenson has had a psychiatric reaction of a mild level of severity that is
not markedly impairing her functioning. Her psychiatric symptoms are consistent
with an adjustment disorder with anxiety. There have been multiple stressors
including the index accident, persisting physical problems since the index
accident, diagnosis and treatment of cervical cancer in 2010, recurring bouts
of pancreatitis, and several job changes and moves. She has generally managed
but continues to have intermittent bouts of generalized anxiety. I am unable to
determine the specific attribution of each of these stressors to her anxiety
symptoms.

[27]      Ms.
Dickenson’s obsessional personality traits may make it more difficult for her
to overcome or cope with any ongoing physical injuries. Although she is
managing in work and social spheres, she appears to be continuing anxiety
symptoms. It is likely that when she has bouts of anxiety it makes it more
difficult to cope with chronic pain. Her obsessional personality traits are
likely interfering with her acceptance that psychological and emotional factors
are limiting further improvement.

[28]      The
present concern is the fact that although her adjustment disorder symptoms are
not causing much psychiatric functional impairment, her overall capacity to
cope with additional stressors that will arise as part of the usual
contingencies of life is reduced. Reducing the symptoms of her adjustment
disorder will increase her overall coping capacity.

[29]      Ms.
Dickenson suffers from an adjustment disorder with anxiety. The main symptoms
are bouts of generalized anxiety and irritability. Her present psychiatric
symptoms are at a mild level of severity.

[30]      Ms.
Dickenson has difficulty with concentration but this appears to be mainly
related to times when her chronic back pain is more severe but anxiety related
to her adjustment disorder is likely a contributing factor.

[32]      Her
current psychiatric symptoms have a minimal practical impact on her work,
recreational and home making functioning. Her anxiety symptoms cause more
clinical distress than functional disability.

[33]      If Ms. Dickenson’s physical
symptoms do not improve she is likely to have a similar level of psychiatric
symptoms over time. If her physical symptoms worsen either related to her back
pain or to her other medical conditions, I would expect an increase in her
anxiety symptoms.

[20]       
The opinion section of the report from Dr. Murray Kievit, chiropractor,
contains the following summary of his treatment and recommendations:

I initially treated Ms. Dickenson with manipulation in the
areas listed under facts and assumptions in an effort to regain joint function.
This was successful as her symptoms continued to decrease. She described fewer
acute flare ups and decreased intensity of her chronic right shoulder/upper
back and lower back pains. As the therapy progressed, I incorporated some
specific soft tissue work. This started with right sided intercostal trigger
point therapy to relieve some of the thoracic discomfort. This has been
effective in decreasing some of her lateral chest pain. More recently, I have
been performing trigger point therapy and specific stretching technique for her
right subscapularis muscle. This has been very effective in decreasing a lot of
her shoulder pain and improving the function and mobility of her right scapula
and shoulder.

Ms. Dickenson continues to describe how her symptoms are
improving but still has concerns about when she will be able to return to a
more active lifestyle.

Objectively, I find that Mr. Dickenson is progressing at a
rate I would expect with someone suffering from an injury sustained four years
ago causing chronic pain and disability. My hope is that she will be able to
participate in the activities she was able to do previous to her motor vehicle
accident. It may not be at the level she was at but presently whenever she
attempts golf or volleyball, her symptoms are greatly exacerbated.

I believe that with continued manipulation, soft tissue
therapy and a tailored exercise regimen, Ms. Dickenson should be able to
perform her daily and sport activities with less symptomatology. Although, I do
not expect that she will ever regain full function or be completely symptom free.

To clarify, I do not believe she
has reached maximum medical benefit and it may take up to one year or more to
achieve. Once maximum medical benefit has been reached, she will need a degree
of continual care to ensure what ground has been gained is not lost. I expect
that to be at least monthly treatment of manipulation and soft tissue therapy.

Non-pecuniary Damages

[21]       
Ms. Dickenson’s mid-back pain symptoms have been variable, but have
persisted to the trial date. She clearly has some physical and functional
limitations as a result of the chronic pain in her mid-back.

[22]       
Prolonged sitting, which is a natural feature of her sedentary
occupation, still increases her pain levels and increases her anxiety and her
ability to concentrate, with a cumulative effect as the work week progresses.
These effects can be mitigated, but not eliminated, by standing up and moving
about during her work day. She is able to do that in her present employment.

[23]       
Prior to the accident, Ms. Dickenson was an exceptionally outgoing,
socially active and athletic young woman described as “the social convenor” by
several witnesses. She was active in various recreational activities, including
jogging, hiking, golfing, downhill skiing, curling, and pitching softball. In
her high school years she had been a competitive curler, but gave that up to
concentrate on volleyball.

[24]       
She coached a female volleyball team for two years after graduating from
high school in 2005, but did not play volleyball after 2005, and has not tried
to play since the accident. She testified that while she did tell Dr. Kievit
that both golf and volleyball exacerbated her condition, she did not actually
tell him that she had tried volleyball. Perhaps Dr. Kievit misinterpreted a
stated expectation regarding playing volleyball. Dr. Kievit did tell her he
thought she would be able to resume playing volleyball and golf.

[25]       
Ms. Dickenson testified in chief that she golfed at least once per week
in the 2009 season, but agreed in cross-examination that she only golfed 12
times that year. She has golfed only twice since the accident, and has not
golfed more frequently because she found that it caused tightness and
discomfort.

[26]       
Ms. Dickenson was able to resume curling in 2011, but she now does so as
the skip, in order to avoid aggravating her back with sweeping.

[27]       
Ms. Dickenson has resumed jogging with the same two to three times per week
frequency as before the accident, but only occasionally does she jog as long as
the one hour she used to before the accident.

[28]       
She has not resumed hiking or downhill skiing (which she previously did
once or twice a year prior to her university years) for fear of falling and
jarring her back. She does not feel that she can pitch a softball, although she
did not say that she had tried. She has declined to try cross-country skiing
again, anticipating the use of her arms would aggravate her back condition; but
the evidence is that is something she did on one occasion previously.

[29]       
During her convalescence from the accident, she was initially irritable
and comparatively withdrawn socially. She was less affectionate toward her
boyfriend, Mr. Mattenly (who she later married in September 2014), and their
sex life was adversely affected. Mr. Mattenly (also an accountant articling
student, at a different firm) testified that after the accident he participated
in recreational activities, including rafting, camping, golf, tennis and
baseball with Ms. Dickenson’s co-workers from KPMG, all without Ms. Dickenson,
who never wanted to go, even to watch.

[30]       
Ms. Dickenson was pre-disposed by her pre-existing obsessional
personality traits to suffer a mild psychiatric reaction, effectively an
aggravation of her “adjustment disorder with anxiety”, even though there were
several other concurrent stressors in play, and Dr. Tomita was unable to
determine the specific attribution of each of the stressors.

[31]       
The plaintiff’s written argument contains the following submission,
which I find is supported by the evidence:

131.     The plaintiff’s personality
remains negatively affected by the consequences of the accident. Her
pre-existing obsessive personality traits, which previously gave her a competitive
advantage, have made it more difficult for her to overcome her loss. She is no
longer the same "bubbly", "happy" person or the social
organizer that so many of the lay witnesses described. She does not go out
dancing anymore and her husband has had to pursue many activities on his own
because the plaintiff is no longer able to do so.

[32]       
A significant component of the plaintiff’s claimed non-pecuniary loss
relates to the alleged effects of her chronic pain on her ability to continue a
career in a large public practice accounting firm, and enjoy the accompanying
lifestyle. Her written submission in this regard states, in part (p. 31):

132.     She
remains profoundly upset that she has had to give up her dream of becoming a
partner in an accounting firm. The plaintiff was a talented accountant,
fiercely competitive with a strong work ethic. After approximately six months,
she began to pull ahead of the other new hires and was being assigned more
advanced work. Her strong skill set was evidenced by a Strong Performance
rating on her performance review. There is simply no explanation for the
decline in her work hours, mood, performance, or love of her job other than the
injuries sustained in the motor vehicle accident.

133.     The
plaintiff is devastated by this loss, describing her post-accident self as
being a failure. This remains a source of embarrassment for her.

134.     Whether pursuing a career in
public practice or industry, the plaintiff must face the harsh reality that her
career is now forever limited by her inability to work 50 to 65 hours/week,
whereas before the accident, she had worked these hours while still maintaining
an active social life.

[33]       
The defendant disputes the fact of declining work hours and submits that
there are other explanations for her declining work performance and job
satisfaction, namely the plaintiff’s several other health challenges and the
reality that the work grew in complexity and her employer’s demands increased,
possibly simply beyond her abilities.

[34]       
I will review the evidence pertaining to Ms. Dickenson’s post-accident
work history. This review is also pertinent to the subsequent discussion
regarding the loss of earning capacity, although additional details will emerge
in that discussion.

[35]       
On her return to work full time on July 5, 2010, Ms. Dickenson testified
that she found that sitting increased her upper back pain and affected her
focus, and she found it difficult to put in 7.5 hours, although she managed to
do so. She found she was unable to work the extra non-billable, unrecorded
hours that she and all other junior employees habitually worked to impress
their employer (a practice referred to as “eating” hours).

[36]       
She said she was making mistakes and her employers became aware of that.
She developed anxiety, knowing that she was underachieving on billable hours,
which she attributed to her inability to work the extra hours needed to produce
a good work product. She had received a favourable year-end performance
evaluation of “strong performer” from her employer in August 2010, but by the
time of an interim performance review in March 2011, her performance manager
noted several “development areas” and commented:

Overall Candace is struggling
with her work/life balance while dealing with health and personal tribulations
over the past months. Candace and I have discussed her plan to increase
chargeable hours, communication and job performance/ownership.

[37]       
Ms. Dickenson had a significant number of time-loss health issues
unrelated to the accident that must be considered when assessing the effects of
her accident-related injuries on her work performance in 2010 and 2011. In July
2010, she was told that her Pap smear test had revealed abnormal cells on her
cervix and a surgical LEEP procedure was scheduled which was performed in
September 2010. She lost intermittent hours of work in July, two days of work
in September and intermittent hours for follow up. Near the end of October
2010, Ms. Dickenson was hospitalized for two weeks with pancreatitis. She
started her fifth CASB module while she was in hospital and found that the bed
rest eased her back pain, but her back pain and the accompanying focus issues
resumed when she returned to work. In February 2011, Ms. Dickenson was off work
for five days for gallbladder removal surgery related to her pancreatitis. She
was hospitalized again for two working days in April 2011 for a pancreatitis
flare-up. She also had difficulties with tonsillitis and calcium buildup on a
tonsil and repeated episodes of strep throat.

[38]       
The CA designation required successful completion of five CASB (CA
School of Business) modules, a prescribed number of months of audit review and
tax experience, and passing a UFE (Uniform Evaluation) exam. Ms. Dickenson had
completed the first three modules by December 2009 in her first year of
employment, so as to be able to work more billable hours in her second year.
She testified that the third module had been the most difficult and had
required at least 15 hours of study per week.

[39]       
Ms. Dickenson started working on CASB module #4 in August 2010. She
failed an assignment, but passed the module #4 exam at the beginning of October
2010, in spite of having difficulty focussing at the end of a three-hour case
study portion of that exam.

[40]       
As I mentioned, she started the fifth CASB module near the end of
October 2010, while in hospital. On her return to work, she said her back pain
returned and affected her focus and her ability to study at home. She denied
that the pain associated with her pancreatitis hindered her work or ability to
study. She passed CASB module #5 in December 2010, despite failing one
assignment.

[41]       
Ms. Dickenson testified that her long-term goal had been to become a
partner at KPMG. One of the interim goals along that path was to become a senior
accountant and, in November 2010, she formally set out her goal to become a senior
accountant by October 2011 in a KPMG form.

[42]       
In a September 2010 Fiscal Year End performance review, Ms. Dickenson
was given a rating of “strong performer”, and her performance manager’s overall
feedback stated:

Strengths include:

– Eager to work on engagements and to learn from the
experience.

– Many managers identified an ability to see the bigger
picture.

– Communication skills were noted as you presented yourself
with confidence.

Items to work on in 2011:

– Organization (we discuss perception)

– Recognize that you are part of a team (when you need help,
make sure you get it)

Candace, you are on track. Keep
up the good work.

[43]       
Between the time of the April 2011 performance review and the fiscal year-end
review in September 2011, Ms. Dickenson only performed her staff accountant
duties at KPMG during the months of May and June. She was booked off to study
and prepare for and write the UFE exam from July 1 to September 19, 2011. Prior
to writing that exam and prior to actually receiving her September 2011
year-end final review, she was called in and informed by the managing partner
that she had received an “improvement needed” rating and would not be promoted
to senior accountant at that time.

[44]       
Ms. Dickenson testified that this news devastated her and she felt like
a failure. She was the only one of the four staff accountants in her co-worker
peer group at KPMG that wrote the UFE at the same time to not be promoted to
senior accountant at that time.

[45]       
Her September 2011 final year-end review contained the following
self-assessment written by Ms. Dickenson on June 30, 2011:

Overall, I do believe I worked
very hard this year and stepped up to take on additional responsibility which
will help in the future years when I will be required to take on more
responsibilities when completing work and other engagements. I know that I have
missed some significant time at work again due to my health issues but I try to
complete all the work and come back to work as soon as possible so I don’t have
to push any work onto others. I wish I wasn’t sick all the time and I can
dedicate 100% of my time to work, but the time I do have I am focused on
completing my work and learning from my mistakes. I have also completed my other
goals and will be focused on completing the others during my UFE summer. I am
now volunteering at the Cancer Society and look forward to using my skill[s] I learn
at work to apply them to the volunteer opportunities. I also feel that I
committed to making the client as happy as possible and go out of my way to
build connections and relationships with clients as this has made my job easier
when I am on repeat clients such as HMZ Law.

[46]       
The performance manager’s overall feedback in the September 2011 year-end
performance review was as follows:

Strengths:

– Steady work effort throughout the year

– Positive attitude

– Respectful of others

– Conscientious

– Asks good questions

– Excellent client interactions, strengthening the KPMG
relationship

Development areas:

– Take ownership of all engagements, show accountability and
communicate well at all stages of an engagement with management

– Be a leader of younger staff

– Self review to ensure queries are not repetitious

– Be eager and curious on all engagements to identify
potential issues/problems

Goals for 2012

– Preparation and review of Performance Improvement Plan with
key individuals. Including:

– Face to face debrief sessions followed up with a PER

– Technical learning (audit/tax)

– Ownership

– Stay ahead on chargeable hours (how will you do this)

Consensus rating – NI

[47]       
In the latter part of October 2011, Ms. Dickenson formally documented
her goals for the 2012 fiscal year interim review. Her statement of these goals
reflected the development areas identified in the final 2011 performance review
and stated a career goal of becoming a senior accountant by October 2012.

[48]       
Although she continued to work at KPMG, Ms. Dickenson testified that she
felt that whatever she did to adhere to rehabilitation plans, she would not be
able to perform as she was expected to and as she believed she was able to do
before the accident; she was afraid that she would be fired.

[49]       
In November 2011, she consulted Dr. Barnard regarding emotional problems
that she described as being in a “funk”, which she attributed to anxiety about
her back pain, her fear of being fired, and her home life, where she found she
was withdrawing from her family and Mr. Mattenly. Dr. Barnard prescribed
Cymbalta, an anti-anxiety medication (also expected to help relieve the facial
pain symptoms mentioned above) and recommended the Bounce Back program, a
program developed for people suffering from mild depression. The Cymbalta made
her nauseous and she discontinued its use after a period of time, but she did
undertake the Bounce Back program. Ms. Dickenson acknowledged in
cross-examination that she had told Dr. Barnard she hated her job and was
looking for other work.

[50]       
After discussions with Mr. Mattenly, Ms. Dickenson decided to search for
a new job with private industry rather than public practice firms, in order to
limit her work week to 40 hours. She spoke to her performance manager at KPMG
about her plans and was assured that she would be provided a reference letter.
She started her job search in December 2011 and located the one-year term
maternity leave position with Tolko Industries in Vernon BC, to commence March
15, 2012.

[51]       
Ms. Dickenson testified that salary was not the primary criteria in her
job search, but she limited her search to private industry. Her decision to go
to private industry was a very beneficial one from an earnings perspective as
well as a health perspective. Her initial salary was $64,800 per annum compared
to $37,500 at KPMG. Her work week was 37.5 hours and she was able to leave her
desk every half-hour or so. Her back pain improved, her anxiety decreased, and
her focus on her work improved. Even though she was living in Vernon during the
work week, her strained relationship with her boyfriend and her family
improved. She was jogging more.

[52]       
Ms. Dickenson said she was still having back pain while sitting. When
she saw Dr. Laidlow in May 2012, he suggested she obtain a personal trainer,
which she did in the fall of 2012. In August 2012, she was still having pain
while sitting and had a flare up and decided to try chiropractic treatment with
Dr. Kievit.

[53]       
Ms. Dickenson resigned from Tolko in January 2013 and obtained
employment in Kamloops with Domtar near the end of January 2013. She was
offered the position of financial analyst in the finance department with a
start date of January 21, 2013 at an annual salary of $72,500 with a target
bonus of 10% of annual base earnings. Her supervisor at Domtar was a witness
for the defendant and testified that Ms. Dickenson’s hours of work were 7:30
a.m. to 4 p.m. with a 30-minute lunch break, with little flexibility. This
equals 40 hours per week. The supervisor acknowledged that Ms. Dickenson put in
longer hours during a 10-day mill shut down in October 2013.

[54]       
Ms. Dickenson testified that she worked 40 to 45 hours per week at
Domtar because she usually worked through her lunch break to impress her boss.
She said that with increased sitting she experienced more back pain and the
accompanying emotional consequences, although the latter were not as extreme as
they had been at KPMG. Her supervisor testified that he did not recall Ms.
Dickenson mentioning any physical discomfort or making any ergonomic requests,
although a chair that had been brought in for another employee became available
and she asked for and was given that chair. The Domtar supervisor described Ms.
Dickenson as a good employee with a high degree of accuracy and a good working
relationship with others. Ms. Dickenson’s self-assessment was that Domtar were
happy with her because she is “so smart and works so hard”.

[55]       
In January 2014, Tolko Industries contacted Ms. Dickenson with an offer
to return as financial accountant at their corporate office in Vernon B.C. at
an annual salary of $74,400, together with benefits, participation in a pension
plan, and a signing bonus.

[56]       
A designation of CA or other designation such as CGA or CMA was a
requirement of the position Ms. Dickenson held at Domtar, but is not a
requirement for her former or present position at Tolko Industries.

[57]       
Ms. Dickenson and Mr. Mattenly bought a house in Vernon in the summer of
2014. Another job opening at Tolko arose and Mr. Mattenly (also a CA) secured
the job commencing October 1, 2014. He also continues to do contract work for a
Kamloops chartered accountancy firm. They were married in September 2014,
having co-habited since March 2010. They plan to continue to live and pursue
their careers in Vernon and, although Mr. Mattenly said that starting a family
is not a current priority, Ms. Dickenson does have a plan. She said that she
plans to have two children in three or four years’ time and, after splitting
available maternity leave, will hire a nanny and return to work.

[58]       
Mr. Mattenly testified that Ms. Dickenson continues to have good days
and bad days and is not yet able to perform household duties or recreational
activities at the level she did before the accident. She is not willing to go
camping, “ATVing”, river rafting or house boating. He does most of the house
cleaning and yard work and large laundry loads and she does the majority of the
cooking. Their Friday nights are usually spent relaxing in order to rest her
back for weekend activities.

[59]       
In summing up the effects of the accident on her enjoyment of life, Ms.
Dickenson said that it has turned her life upside down, changed the person she
was, and forced her to change her goals because she cannot push through the
back pain to achieve her goals. She says that she is now “unable to take
advantage of how smart I am”.

[60]       
She argued that she is forever foreclosed from pursuing her dream of partnership
in a large public accounting firm because she is unable to work the extra hours
that pursuing that dream would necessarily require. Dr. Laidlow’s evidence
provides some support for that argument, when he says:

I do not think that working
longer hours would necessarily cause her more harm, but it would be expected
that working more than 40 hours per week would cause her more discomfort and
challenge her ability to cope with her discomfort to a much greater extent.

[61]       
The following portion of Dr. Tomita’s opinion is also supportive:

She appears to have made a wise
choice in shifting jobs as the accumulating stress in the KPMG position could
have led to a more severe psychiatric reaction such as anxiety disorder or mood
disorder.

[62]       
I agree with Ms. Decker’s submissions on the reliability of Ms.
Dickenson’s testimony to the extent that I do not believe her evidence that the
recurrent pancreatitis attacks and removal of her gall bladder, and other
health issues had no effect whatever beyond the specific time lost off work on
her ability to work long hours or focus on her work, and that these problems
were solely attributable to her mid-back pain. The evidence does not support
Ms. Dickenson’s subjective conclusion that the persisting mid-back pain was the
only reason she could not obtain a favourable rating and be promoted to senior
partner due to reduced workplace performance and stamina.

[63]       
However, even though her chronic mid-back pain was only one of several
causes contributing to her lost time at work, her decreased performance, her
reduced stamina at work and her anxiety symptoms, and her career shift was a
considered decision, I do accept that the chronic pain was a material
contributing cause of her failure to be promoted to senior accountant along with
her peers. I also find that her chronic pain was a material contributing factor
in her decision to leave public practice in favour of the shorter hours in
private industry. The medical evidence suggests that her decision was very
prudent from a health perspective.

[64]       
The parties devoted a good deal of time and energy at trial and in their
submissions to Ms. Dickenson’s computerized timesheet records.

[65]       
The defendant contends that these records do not support Ms. Dickenson’s
evidence that she could not work the long hours required of her, and in fact
demonstrate that she worked more hours in the year after the accident than she
did in the year before the accident, including more days where she worked
overtime hours.

[66]       
Utilizing the tables prepared by the defendant in her written
submission, which appear to accurately transpose the time sheet evidence as to
billable hours, administrative hours (including education), and overtime, I
have calculated the following:

a)    Total recorded
hours for 23 bi-weekly periods starting with the period ending June 30, 2009
continuing to May 31, 2010 (pre-accident) equal 1673.4;

b)   
Total recorded hours for 23 bi-weekly periods starting with the period
ending June 30, 2010 continuing to May 31, 2011 (post-accident) equal 1606.4.

[67]       
For the same periods, her pre-accident billable hours recorded were
1243.5, compared to 1237.2 post-accident.

[68]       
In the pre-accident busy months of January to April of 2010, Ms.
Dickenson recorded 741.4 hours, comprised of 626.2 billable and 115.2
administrative. In the comparable period post-accident, she recorded a total of
723.3 hours, comprised of 570.9 billable and 152.4 administrative.

[69]       
Having made these observations, I do not agree with the defendant’s
argument that the time records demonstrate that Ms. Dickenson worked more hours
in the year after the accident than in the year pre-accident. She actually
worked marginally less in total according to her recorded time. Of course,
considering that she lost approximately four weeks of work due to health
problems unrelated to the accident, she must have worked longer hours at times
in order to make that time up.

[70]       
The time sheet data does demonstrate that in the year after the
accident, Ms. Dickenson recorded approximately twice as much overtime as she
did in the year preceding the accident, by a ratio of 171.4 hours to 86.8 hours
(these hours are included in the total hours).

[71]       
The plaintiff submits that a comparison of the records for specific
months in pre and post-accident years does establish a decline in performance
and efficiency consistent with the plaintiff’s evidence in that they
demonstrate a relative increase post-accident in the proportion of total hours
recorded that are not chargeable. It is certainly true with respect to the
January-April comparisons pre and post-accident, that not only did the billable
hours go down from 723.3 to 626.2, but administrative hours went up from 115.2
to 152.4. However, there were other factors involved that temper the inference
that should be taken from that data. For example, total hours and billable
hours were undoubtedly affected by Ms. Dickenson’s week of hospitalization in
February 2011 for gall bladder surgery, and two days of time lost for another
hospitalization for pancreatitis in April 2011. Administrative hours were
affected by increased education time in January 2011 compared to January 2010.

[72]       
In respect of the increased overtime, the plaintiff points out that in
the month of March of 2011, which accounted for eight of the days of long hours
(consisting of 11 to 16 hours per day) not matched in March 2010, the plaintiff
was on audit out of town and those hours included travel time.

[73]       
The time sheets do not record what are colloquially called “eaten
hours”, that is extra unrecorded hours gratuitously worked by accounting
students and staff accountants to better themselves competitively vis a vis
their co-workers or to impress the employer, or perfect the product for the
client beyond what they have been able to accomplish within the expected or
budgeted time allowance. Ms. Dickenson’s evidence that she was unable to “eat”
the number of hours post-accident that she had before was supported by her
co-worker, Mr. Guercio, and to some extent by Mr. Mattenly.

[74]       
Mr. Guercio testified that he used to work a total of 55 to 65 hours
weekly, including “eaten” hours in the slower months of May to December and 65
to 75 hours in the busy January to April months. He said Ms. Dickenson worked
the same hours before the accident. After the accident, he noticed that she
went home earlier than he did. Mr. Mattenly testified that Ms. Dickenson worked
fewer hours than he did and was often home before he was.

[75]       
Ms. Dickenson agreed that increased “eaten” hours are a sign of
inefficiency, but I am satisfied that they are a feature common in the accounting
field; once common, they are obviously necessary in order to be competitive. I
accept Ms. Dickenson’s evidence that her pain significantly reduced her ability
to perform the “eaten” hours, and find that this was probably a material factor
in her performance evaluation, as it would undoubtedly have affected the
quality and quantity of her work product.

[76]       
I accept that the non-promotion was a significant embarrassment for Ms.
Dickenson, given her competitive, goal-oriented nature and her obsessive personality
traits. Common sense suggests that, objectively, it probably also reduced
whatever prospects she previously had of becoming a partner at KPMG, although
there was no evidence specifically addressing that question.

[77]       
It was stated in argument that Ms. Dickenson’s loss of her dream of
becoming a partner at KPMG continues to be a source of embarrassment for her
(see para 32 above). I do not have a note of her testifying to that effect, but
in any event the emotion of embarrassment does not usually or naturally persist
following a failure that one attributes to someone else’s actions, as Ms.
Dickenson does in this case. I do not believe that Ms. Dickenson remains
embarrassed, but I accept that she had a dream of becoming a KPMG partner at
some future time and that the loss of her dream continues to distress her,
regardless of how difficult that goal may have been to achieve, viewed
objectively.

[78]       
Mr. Holden, a former KPMG partner called as a witness, testified that
the primary requirements for achieving partnership in a large public
accountancy firm are talent, business sense, personality, hard work and long
hours. He agreed in cross-examination that typically more than one half of new
CA graduates leave public practice. He also testified that it took him 11 years
at KPMG to make partner; that this involved working 50 to 70 hours per week
during the very busy season. KPMG had no female partners in the Kamloops office
during his 30 years with the firm, ending in 2009, although they had several
nationwide. No one, male or female, became a partner in his last 10 years with
the firm, except through mergers.

[79]       
I will deal later with the specific issue of pecuniary loss relating to
the career path shift, but I find that the distress experienced from the career
shift has added significantly to the plaintiff’s emotional suffering in this
case, so as to inflate my assessment of non-pecuniary damages above the
assessment in cases which are ostensibly comparable based on the extent of
physical injury. She remains distressed, if not by the change in her
overarching goal itself, which after all was a considered decision, then by the
fact that there is now an upper limit on the weekly hours that she can work in
her chosen profession, which leaves her with the feeling that she is now bound
to underutilize her training and her chartered accountant designation.

[80]       
The plaintiff has referred me to the following cases for comparison: Smith
v. Fremlin, 2013 BCSC 800 [$90,000]; Dhaliwal v. Meerdink, 2014 BCSC
2418 [$90,000]; Worobetz v. Fooks, 2015 BCSC 150 [$90,000]; J.D.
v. Chandra, 2014 BCSC 466 [$100,000]; and Dunne v. Sharma,
2014 BCSC 1106 [$110,000].

[81]       
The defendant has referred me to the following cases for comparison: Barnes
v. Lima, 2014 BCSC 1282 [$45,000]; Mayenburg v. Lu,
2009 BCSC 1308 [$50,000]; and Rogalsky v. Harrett,
2014 BCSC 1255 [$50,000 inclusive of $15,000 for loss of housekeeping
capacity].

[82]       
The defendant suggested that Mayenburg is particularly similar to
the present case. On my view of the case, there are few similarities other than
that the plaintiff was a young woman about to start a two-year accountancy
articling program and she was injured in a rear end collision and suffered pain
in her neck and shoulders upper and lower back.

[83]       
Ms. Mayenburg first sought medical attention at a walk-in clinic two
days after the accident and was referred to massage therapy which she attended
four times and did not return because she did not find it beneficial. She later
attended her family doctor who recommended physiotherapy and she attended only
six physiotherapy sessions. The court noted that the plaintiff prior to the
accident did hiking, some biking and running. She enjoyed socializing with her
friends and would frequently go out dancing. In the court’s words:

[23]      …She has resumed these
activities with barely a gap, although she says she suffers discomfort in her
upper and lower back when hiking steep trails, and when dancing

[84]       
Referring to physiatrist Dr. Apel’s guarded prognosis for complete
symptom resolution, the court said:

[42]      As indicated above, I
accept the conclusions of Dr. Apel. That said, Ms. Mayenburg’s injuries have
had minimal effect on her lifestyle or her ability to carry on with the
activities that she enjoyed beforehand. Her damages must be assessed on that
basis.

[85]       
There is no discussion in Mayenburg of relationship difficulties,
personality change, psychological injury, or distress over a forced career
change. In Ms. Dickenson’s case, I assess the effects on her lifestyle, her
recreational activities, her working life and her enjoyment of life generally
as being much more serious.

[86]       
I find the cases cited by the plaintiff regarding this head of damage to
be much more comparable to this case. It is not necessary to review the facts
of each, which are known to the parties and available to anyone else
interested, but in Smith and J.D. the awards involved similar
injuries and consequences and forced changes of career path; Dhaliwal
involved a psychological injury and personality or disposition changes in a
plaintiff with similar drive, energy and enthusiasm pre-accident to Ms.
Dickenson.

[87]       
Ms. Worobetz was not of a similar age or occupation to Ms. Dickenson,
but her injury was similar and she had undergone some of the same treatment
modalities as Ms. Dickenson, although she had a greater variety, including
acupuncture and trigger point injections. Her husband had to assume a greater
role in household activities and there were relationship and intimacy
difficulties.

[88]       
Dunne involves more serious injuries than Ms. Dickenson’s,
including a severe generalized anxiety disorder, depression, and post-traumatic
stress disorder.

[89]       
In my assessment, a fair and reasonable amount to compensate Ms.
Dickenson for her non-pecuniary losses, inclusive of an award for loss of
housekeeping capacity, is $100,000 and I award that sum.

Loss of Earning Capacity – Past and Future

[90]       
It is admitted that Ms. Dickenson actually suffered no past income loss
because, as of the trial date, she has earned much more in private industry
than she would have earned at KPMG. However, the plaintiff is seeking a
distinct award for loss of past earning capacity in the range of one to two
years’ salary at the level she would be earning if she remained at KPMG.
Reliance is placed on Ibbitson v. Cooper, 2012 BCCA 249.

[91]       
In Ibbitson, the trial judge was upheld in awarding $105,000 for
past loss of earning capacity where the plaintiff could no longer perform his
pre-accident job and obtained a different job which earned him the same income,
but required him to work longer hours to maintain that income. Garson J.A., for
the court stated, at paras.19-21:

[19]      While in many cases the actual lost income will be
the most reliable measure of the value of the loss of capacity to earn income,
this is not necessarily so. A hard and fast rule that actual lost income is the
only measure would result in the erosion of the distinction made by this Court
in Rowe: it is not the actual lost income which is compensable but the
lost capacity i.e. the damage to the asset. The measure may vary where the
circumstances require; evidence of the value of the loss may take many forms
(see Rowe). As was held in Rosvold v. Dunlop, 2001 BCCA 1 at
para. 11, 84 B.C.L.R. (3d) 158, the overall fairness and reasonableness of the
award must be considered taking into account all the evidence. An award for
loss of earning capacity requires the assessment of damages, not calculation
according to some mathematical formula.

[20]      In this case, the respondent clearly suffered as a
result of the accident; he can no longer perform the job he was engaged in
prior to the accident. He has suffered a pecuniary disadvantage as he needs to
work longer hours to maintain his approximate pre-accident level of income.

[21]      The trial judge
considered pre-trial earnings both before and after the accident, explaining
that calculating a precise value for the extra hours was a difficult task, and
chose to assess the damages "at large". Had Mr. Ibbitson worked the
same amount of hours post-injury as he had pre-injury, he surely would have
been found to have suffered a compensable loss of earning capacity. His entitlement
to such damages does not disappear due to his industrious efforts to maintain
his level of income, exceeding his legal requirement to mitigate. I agree with
the trial judge’s conclusion and analysis.

[92]       
In the present case, while I do find that the plaintiff has proved a
reduction of earning capacity, manifested in being limited to approximately 40
hours of work on a regular basis as an accountant, she has not identified any
pecuniary disadvantage or hardship occasioned prior to the trial date associated
with her reduced earning capacity. She certainly has not worked longer hours to
maintain a pre-accident income level; rather she has worked considerably fewer
hours to earn a considerably greater income.

[93]       
I make no award for past loss of earning capacity.

[94]       
In respect of the claim for loss of future earning capacity, the
following portion of Ker J.’s decision in Mackenzie v. Rogalsky, 2011
BCSC 54 is helpful in setting out the relevant factors and the pertinent
authorities:

[278]    To determine the question of whether a plaintiff has
established an impaired future earning capacity the court considers the
following criteria established by Mr. Justice Finch (as he then was) in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) [Brown], at para. 8:

a.         Whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

b.         Whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

c.         Whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might have otherwise been open to him, had he not been injured; and

d.         Whether
the plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour market. (see also Rosvold at para. 10; Kuskis
at para. 152).

[279]    In Bedwell v. McGill,
2008 BCCA 6, at para. 53, the Court of Appeal clarified the issue of proof,
holding it is necessary for a plaintiff to prove a substantial possibility of a
future event leading to an income loss. The plaintiff is not required to prove
this loss on a balance of probabilities (see also Steward v. Berezan,
2007 BCCA 150, at para. 17). However, there needs to be some "cogent
evidence" to trigger the Brown considerations: Marcelino v.
Francesutti, 2002 BCSC 1711, at para. 57; Carvalho v. Angotti, 2007
BCSC 1760, at para. 59. In Moore v. Cabral et al., 2006 BCSC 920, at
para. 78, Madam Justice MacKenzie (as she then was) stated that "ongoing
symptoms alone do not mandate an award for loss of future earning
capacity."

[280]    To quantify a loss of
earning capacity, the court conducts an assessment, based on the evidence,
rather than applying a purely mathematical calculation: Rosvold at para.
11; Kuskis at para. 153; Durand v. Bolt, 2007 BCSC 480. For
assessment purposes, income earning capacity is viewed as a capital asset where
all relevant negative and positive contingencies must be considered: Kuskis
at para 154; Fox at paras. 92, 102-103. In addition, the overall
fairness and reasonableness of the award must also be taken into account: Rosvold
at para. 11.

[281]    In terms of relevant contingencies that need to be
considered, they may be general or specific in nature. Relevant contingencies
can include such things as the potential for improvements in health,
opportunities for advancement, decline in the economy and loss of employment,
as well as the usual chances and hazards of life: Djukic v. Hahn, 2006
BCSC 154, at para. 105; Kuskis at para. 155.

[95]       
The defendant argues that the plaintiff has not discharged the burden of
establishing that there is “a real and substantial possibility of a future
event leading to an income loss”, as required by the authorities, including Perren
v. Lalari, 2010 BCCA 140, which authorities also emphasize that mere
speculation is not sufficient to justify an award. The defendant argues that
Ms. Dickenson’s stated goal of becoming a partner at KPMG was just a dream and
tantamount to speculation.

[96]       
The plaintiff submitted a report from PETA Consultants Ltd. (“Peta”),
estimating future income losses applicable to Ms. Dickenson on the assumptions
that, in the absence of the accident, she would have continued to enjoy
full-time full-year employment and earnings of a CA at KPMG or similar
employer, rising from the position of senior accountant to partner until her
retirement age no later than 65, 60 or 55, and that as a result of the accident
she would instead work full-time full-year as a financial accountant at Tolko
Industries or similar employment.

[97]       
The Peta report provides present value calculations of two different
income streams utilizing estimates provided in their instructions from the
plaintiff’s counsel. The plaintiff testified that she obtained the income
figures cited in the Peta report for senior accountants, managers and senior managers
from an unspecified document she had seen while she was employed at KPMG, that
outlined positions and ranges of salary, and she had been able to figure out
the incremental increases over time from her knowledge of how long various
employees had been working at KPMG. There was no source document tendered in
evidence, nor did Ms. Dickenson testify as to how she had been able to recall
the detailed salary information.

[98]       
The Peta report assumes that, without the accident, Ms. Dickenson would
have been promoted to senior accountant in October 2011, promoted to manager in
October 2014, to senior manager in October 2020, and to partner in October
2028, with estimated annual increases of $6,000 per year from a start as senior
accountant, annual increases as a manager of $3,000 per year graduating to
$6,000 per year, and then annual increases of $5,000 as a senior manager.

[99]       
She said that the earnings of partners were unknown, so she had referred
to a CA compensation survey for the broad range of $175,000 to $300,000. She
did not provide any details of the source of the survey she had consulted, nor
was the survey tendered in evidence, but she was cross-examined on the basis
that it was a December 2013 CPA Profession Compensation Study produced by QRI
International which had been listed as a plaintiff’s document in document
discovery, and she acknowledged that she thought that was correct.

[100]     She
acknowledged that this study, which includes data for CA, CPA, CMA and CGA
designations, reported higher median compensation for accountants in industry
than for non-owner accountants in public practice. She reluctantly agreed that
it also indicated that less than 10 % of CAs in public practice firms become
partners.

[101]     The Peta
report utilizes Ms. Dickenson’s expectations of her future earnings at Tolko on
the basis of 3% annual increases to a maximum of $120,000, which would be
attained in 2031. The Peta report indicates that the difference between the
present values of the two income streams is $708,122, assuming a retirement age
of 55, and $1,039,700 assuming retirement at age 60, and $1,274,473 assuming
retirement at 65.

[102]     The
defendant provided an economic consultant’s report from Columbia Pacific
Consulting (“Columbia”), which references a CA Profession Compensation Survey
2011- BC & Territories Report, and data from Statistics Canada’s 2011
National Household Survey in two categories: firstly, Females with Bachelor’s
Degree or University Certificate Above in the field of Business, Management,
Marketing and Related Support Services, and secondly, females in the specific
occupation of Financial Auditors and Accountants. The Columbia report provides
present values of future lifetime income in these categories of $1,426,408 and
$1,470,451 respectively, and suggests a loss assessment could be based on a
finding of a percentage reduction in capacity.

[103]     I see two
main problems with the plaintiff’s income stream approach to assessing this
head of damage. The first is that, even if I found her prospects of becoming a
partner at KPMG or a similar firm to be a real and substantial possibility, I
would find the likelihood of that event to be a very small percentage, and
assessing that percentage likelihood on the state of the evidence in this case
would be very difficult.

[104]     The second
problem is that I would have to apply that percentage likelihood to a present
value calculation based on the earnings and advancement progression data
supplied to Peta, which I do not find sufficiently reliable to be a foundation
for assessment. I note, by reference to Tables 2 and 3, that the entirety of
the positive difference in the cumulative present values of the two income
streams in favour of the public practice route accumulates after 2030, by which
time it is assumed that Ms. Dickenson would have made partner (in October 2028),
and it is assumed that her earnings at Tolko would have capped forever at
$120,000. The latter assumption appears very unrealistic, considering that she
will then be only 42 years old and probably at the peak of her career.

[105]     Having
said that, the Peta report is useful in providing calculations of cumulative
present values based on Ms. Dickenson’s current salary and anticipated
increases.

[106]     I am
satisfied on a consideration of the Brown v. Golaiy criteria that Ms.
Dickenson has suffered a diminishment of her future earning capacity because of
the effects of her chronic pain on her work stamina. I find that there is a
real and substantial possibility of a future pecuniary loss occurring, such as
not being able to take advantage of promotions requiring longer work hours, as
she testified would be the case in respect of a promotion to chief financial
officer. She also testified that, but for her limitations, she could and probably
would take on extra contract work, as her husband has in fact done.

[107]     There is,
of course, also the contingent possibility that her condition will improve and
be less of an impediment in the future.

[108]     My
assessment is that a fair and reasonable award under this head of damage is
$100,000.00, and I make that award.

Cost of Future Care

[109]    
The Plaintiff claims an award of $5,000 to $10,000 for ongoing
chiropractic and massage therapy, which is disputed by the defendant on the
basis of Dr. Laidlow’s opinion, stated as follows in his September 15, 2014
report:

I am less in favor of ongoing
passive treatments at this point in time after the accident. The best
intentions of the chiropractor would never result in anything more than very
transient relief and I would rather see her put time into a stretching program,
as I think it will be more productive and result in more of a long-term gain. I
do not feel that there is any role for further physiotherapy or massage.

[110]     Ms.
Dickenson is cognizant of Dr. Laidlow’s opinion, but says that she will
continue the chiropractic and massage sessions because she gains short-term
relief which helps her through her work week. Dr. Laidlow was the plaintiff’s
expert witness in this trial and, in assessing the medical necessity of chiropractic
treatment or other “passive” treatment, I think that his evidence should be
preferred over that of Ms. Dickenson or her chiropractor.

[111]     I make no
award under this head of damages.

Special Damages

[112]     The agreed
unpaid special damages are $2,851.94, and I will add $141.75 for kinesiology,
but disallow the disputed chiropractic and massage therapy expenses, for an
award of $2,993.69.

Summary

[113]     I have
made the following awards:

[114]    
The plaintiff is entitled to costs, unless there are relevant
considerations of which I am unaware. In that event, costs may be spoken to.

“I.C. Meiklem J.”

MEIKLEM J.